(a) Cancellation of a contract based on excessive demand on performance;

(b) Where it is impossible to dismiss a lawsuit because the method of attack and defense by the real time limit is not to delay the conclusion of litigation even if such method exists;

(c) The meaning of "transfer of the whole or essential part of the business" under Article 374 subparagraph 1 of the Commercial Act;

A. Even in cases where the obligee’s demand for performance exceeds the amount of the original obligation, if the difference between the amount to be paid and the amount to be paid is relatively small or excessive to the obligee, or the obligee knew the amount to be paid and excessive to the obligee, and the purport of the obligee’s demand for the original payment is that the highest demand is valid within the scope of the amount to be paid. However, if the obligee’s demand is obvious and the obligee’s demand is obvious, the highest demand is unlawful, and the termination of the contract based on such highest demand is invalid.

B. The court may dismiss the method of offence or defense which was submitted late at the time of the party's intention or gross negligence when it is acknowledged that the conclusion of the lawsuit would be delayed, and it may be done not only in the form of independent decision but also by the method determined among the reasons for the judgment. However, the court cannot reject the conclusion of the lawsuit in such a case where the examination of evidence on the means of offence or defense is completed without a decision to dismiss the means of offence or defense by the party. Thus, even in such a situation, it cannot be said that a new judgment rejecting the means of offence or defense by the party cannot be determined in such a circumstance, and even in such a case, even if the means of offence or defense exists as the matters requiring separate review or examination of evidence exist, it is necessary to continue the date, and it is possible to complete the examination of the means of offence or defense within the scope of the continuance date, or it is included in the scope of litigation materials which have already completed the trial, and thus, it cannot be viewed as delaying the conclusion of the lawsuit.

C. For the purpose of Article 374, subparagraph 1 of the Commercial Act, which requires a special resolution of the general meeting of shareholders, the term “transfer of the whole or essential part of the business” means a transfer of the whole or essential part of the business which is organized for a particular business purpose and functions systematically as a whole. Since it must be accompanied by a succession of the whole or essential part of the business activities of the transferring company by the transferring company, the mere transfer of the business property does not constitute this, but in case where the disposal of the business property results in the same result as the transfer or closure of the whole or part of the business of the transferring company, a special resolution

A. Article 544 of the Civil Procedure Act: Article 138 of the Civil Procedure Act; Article 374 subparagraph 1 of the Commercial Act

A. Supreme Court Decision 87Meu3147 delivered on December 13, 1988 (Gong1989,103) (Gong1990,1573) (Gong1573 delivered on June 26, 1992) 91Da38723,38730 delivered on July 24, 1992 (Gong1992,2520) (Gong1987,1137). Supreme Court Decision 91Da36062 delivered on February 14, 1992 (Gong192,1028) (Gong14369 delivered on August 18, 1992)

[Defendant-Appellee] Defendant 1 and 2 others

Defendant 1 and one other, Defendants et al., Counsel for the defendant-appellant-appellee and two others

Seoul High Court Decision 91Na41653 delivered on August 20, 1993

All appeals are dismissed.

The costs of appeal shall be assessed against the defendants.

The Defendants’ grounds of appeal are examined as follows: (a) the Defendants’ supplementary appellate brief of Kim Jong-chul are examined to the extent that it supplements the grounds of appeal set forth in the above appellate brief.

Defendant’s ground of appeal Nos. 1 and 2

In light of the records, the facts established by the court below is acceptable in finding the facts of the court below in light of the records, and it is just that the plaintiff and the defendant did not recognize the fact that they agreed to pay in advance all or part of the remainder payment as of December 26, 1989, which was the date of the second intermediate payment under the contract of this case, the second intermediate payment payment payment date of this case, and that the court below's notice to the plaintiff that he paid 30,000,000 won in excess of 30,000 won in the second intermediate payment as of December 26, 1989 or defendant 1 notified the plaintiff to pay 30,000,000 won in excess of 30,000 won in the second intermediate payment as of December 36, 1989, and there is no error of law by misunderstanding

The issue is that the court below's fact-finding that both the plaintiff and the defendant alleged that there was a verbal agreement to receive land compensation and to implement the balance payment prior to the remainder payment date under the sales contract (Evidence A5) is consistent with the empirical rules. However, in light of the records, it cannot be said that the plaintiff's intention is nothing more than that of the plaintiff, but merely expressed his intention to make the balance payment in advance, and it is nothing more than that of the plaintiff's intention to make the balance payment. Thus, we cannot accept the reasoning of the court below's decision.

Therefore, there is no reason to discuss.

As to the ground of appeal No. 3 by the same attorney and the ground of appeal No. 1 by the defendant Kim Jong-chul et al.

1. Even in cases where the obligee’s demand for performance exceeds the amount of the original obligation, if the difference between the amount to be performed by the obligee’s demand for performance is relatively small or excessive, or the obligee made excessive demand with knowledge of the amount to be performed by the obligee, and thus, the obligee claims for the original payment, such demand is deemed to be valid within the scope of the amount to be paid by the obligee. However, if the obligee’s demand is obvious and the obligee’s demand is obvious and the obligee would not receive it, the demand is unlawful, and the termination of the contract based on such demand is null and void (see, e.g., Supreme Court Decisions 87Meu3147, Dec. 13, 198; 89Meu34022, Jun. 26, 1990).

2. According to the facts established by the court below, as the plaintiff intended to pay 30,00,000 won which is unpaid on or around December 30, 1989, Defendant 1 refused to receive payment of the remainder on or after January 10, 1990, on the ground that there was an obvious understanding on early payment of the remainder at the time of contract, and there was an obvious need to receive payment of the remainder on or after January 10, 1990, the plaintiff refused to receive payment of the remainder on or after the 300,000,000 won, and on January 10, 1990, the plaintiff could not receive payment of the remainder on or after the 00,000,000 won which is part of the part of the intermediate payment and the remainder, and it cannot be viewed that the plaintiff did not receive payment of the remainder on or after the 300,000,000 won of the total amount before and after the 300,000,00 won of the intermediate payment.

The issue is that the court below erred in finding that Defendant 1 refused to receive part payments on the premise that the Plaintiff offered legitimate performance, although the Plaintiff did not offer an intermediate payment as a check of the number of shares. However, the court below did not recognize that the Plaintiff offered 30,000,000 won as a check of the number of shares on December 30, 1989, and recognized that the Plaintiff offered 60,000,000 won as a check of the number of shares on January 10, 1990. However, according to the facts acknowledged by the court below, the ground for refusing to receive part payments was not that the Plaintiff offered as a check of the number of shares, but that the amount of the remaining amount to be paid in advance is less than that of the Plaintiff, so such circumstance can not be accepted, since the Plaintiff refused to receive 30,000,000 won again in cash.

In addition, since the plaintiff could not specify the date, but expressed his intention to pay the balance in advance, it cannot be deemed unlawful as excessive peremptory notice on the ground that defendant 1 made a peremptory notice to perform part of the balance in addition to the remaining amount of the second amount, as long as the defendant 1 expressed his intention to pay the balance in advance, it cannot be deemed unlawful. However, the precedent pointing out by the theory of lawsuit is inappropriate to be invoked in this case.

Therefore, this paper is without merit.

Defendant 1’s ground of appeal No. 2

1. The court may dismiss an attack or defense which was submitted late at the time due to the party's intention or gross negligence when it is acknowledged that the conclusion of the lawsuit would be delayed, and it may be done not only in the form of an independent decision but also by the method of a decision, which may be judged from among the reasons for the decision. However, the court does not have any possibility of delaying the conclusion of the lawsuit in a case where the examination of evidence on the means of attack or defense is completed without making a decision of rejection on the means of attack or defense of the party. Thus, in such a situation, it cannot be said that a new decision of dismissing the means of attack or defense of the party cannot be made

In addition, even if the means of attack and defense during the actual time period exist, it is necessary to continue the date of attack and defense, and it is possible to complete the deliberation of the means of attack and defense within the scope of the continuation date, or if the contents of the means of attack and defense are already included within the scope of the litigation materials which have already completed the deliberation, it shall not be deemed to delay the conclusion of the lawsuit, so even in such a case, it shall not be dismissed.

2. According to the reasoning of the judgment below, the court below determined that the transfer of the factory building of the defendant company member industry (hereinafter "the defendant company") among the real estate in this case caused the same result as the discontinuance of the defendant company's business, and thus, it requires a special resolution of the general meeting of shareholders. As to the defense of the defendant company that the defendant company's sales of the factory building independently by the means that the defendant 1 is in office as the representative director of the defendant company violated the provisions of Article 374 of the Commercial Act and null and void, the above assertion of the defendant company had been filed more than 10 times a year from the first instance court to the first instance court, and it was filed more than 6 times after the closure of the pleading at the end of the pleading, and it is obvious that the trial requires considerable time, and thus, it should be dismissed as a means of defending the actual period

According to the records, the court below, which concluded the pleading on the 6th day for pleading of the court below, and the attorney of the defendant company resumed the pleading on the ground of the above defense, and the defendant company's legal representative submitted the above defense on the 7th day for pleading, and at the same time submitted a documentary evidence to the non-party witness examination. The court below, after examining the evidence and adopted the non-party witness, conducted an examination of the evidence on the 10th day for pleading of the defendant company, and the examination of the evidence as to the above defense of the defendant company was completed. Further, the court below, other than the above defense, continued the examination on the 17th day for pleading on the 17th day for pleading of the plaintiff and the defendant, and concluded the pleading without rejecting the defense, even if the defense of the defendant company was in force, and it should be deemed that the court below had completed all the evidence examination on it until the 17th day for pleading of the defendant company, and thus, it cannot be viewed that it had been necessary to conclude the new hearing or defense of the defendant company within the new grounds for pleading.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the means of real-time attack and defense.

3. However, the court below rejected the defense on the ground that the factory building of the defendant company, which was the object of transfer by making a substantive judgment on the grounds of the above defense by the defendant company, is not deemed to be an essential property necessary for the continuation of business, and the transfer of the factory building cannot be deemed to have caused the discontinuance of business due to the transfer of the factory building. Thus, the court below's

Article 374 subparagraph 1 of the Commercial Act, which requires a special resolution of the general meeting of shareholders, refers to the transfer of the whole or part of a business, which is organized for a specific business purpose, and which functions as an organic whole, of all or part of a business. Since the transfer of the business property by the transferring company should be accompanied by the succession of the whole or part of the business activity of the transferring company, the mere transfer of the business property does not constitute the transfer of the business property. However, if the disposal of the business property results in the same result as the transfer or discontinuance of the business of the transferring company, a special resolution of the general meeting of shareholders is required (see Supreme Court Decisions 86Da2478 delivered on June 9, 1987; 91Da36062 delivered on February 14, 1992).

However, according to the contents of No. 23-1 to No. 23-3 (Settlement of Accounts, etc.) which the court below adopted, the judgment of the court below is just and acceptable, and there are no errors in the misapprehension of the reasoning or the misapprehension of the reasoning, since the building of this case was sold to the plaintiff by the defendant company, and the defendant company can move the building of the factory and continue its business. Thus, it is difficult to regard it as a transfer of the whole or important part of the business under Article 374-1 of the Commercial Act due to the transfer of the building of the factory, and as long as the site of the building of the factory was sold to the plaintiff, it cannot be deemed that the transfer of the building of this case brought the same result as the transfer or abolition of the whole or part of the company's business.

The issue is that even if the site of the factory building is transferred to the plaintiff, the defendant company acquires customary statutory superficies against the factory building. However, according to the facts acknowledged by the court below, it cannot be recognized that the owner of the factory building and its site is not the same.

4. Thus, the judgment of the court below is erroneous in the misapprehension of the legal principles as to the method of attack and defense as seen above, but it is legitimate in the conclusion that the defendant company's defense is not accepted, which is not affected by the conclusion of the judgment of this case, and the arguments are without merit.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-soo (Presiding Justice)